75 Ind. App. 688 | Ind. Ct. App. | 1914
Appellant has filed an application by way of motion for leave to amend its assignment of errors, by which it seeks to amend the title of the assignment of error, first, by adding to the name of the appellant and after the words “The City of Decatur,” the words, “Indiana, a municipal corporation,” and second, by striking out the name of the appellee in such title the word “executrix” and inserting in lieu thereof the word, “administratrix.”
Affiant further swears that in preparing said assignment of error, by inadvertence and by mistake, which mistake occurred by the many mistakes contained in the record, as above set out, which confusion and mistakes in the record were caused entirely by the mistake of the appellee in so instituting- her action, he styled the appellee ‘executrix’ instead of ‘administratrix’; that said mistake occurred, as above set out, wholly and alone, through the confusion contained in the record in the styling of said appellee by said designation of. executrix in all the entries and in all the pleadings, excepting solely in the complaint.”
The first paragraph of this complaint contains the following averment: “Comes now the plaintiff in the above entitled cause and says that she is the duly appointed qualified and acting executrix of the estate of Philip J. Eady, deceased, who died on March 24, 1911, leaving surviving him his widow the plaintiff herein, and the following named children: Cecil, seventeen years of age, Irene, fourteen years of age, Vera, twelve years of age, and as such administratrix she complains of the defendant, the city of Decatur, Indiana, and says,” etc. The second paragraph of complaint contains the following averments: “For a second and further paragraph of plaintiff’s complaint she complains of the defendant and says that she is the duly appointed, qualified and acting administratrix of the estate of Philip J. Eady, deceased who died on the 24th day of March, 1911, leaving surviving him his widow, the plaintiff herein, and the following named children: Cecil,, seventeen years of age, Irene, fourteen years of age, Vera, twelve years of age, and as such administratrix she complains of the defendant, the City of Decatur, Indiana, and says,” etc,
The defendant’s answer filed with said transcript in the Allen Circuit Court was entitled as follows: “Rebecca Eady, Executrix vs. The City of Decatur, A Municipal Corporation.”
The affidavit for .change of venue filed with such transcript, and, excepting the first above indicated, the record entries made in the Allen Circuit Court up to and including the instructions tendered by the plaintiff and the entry of the final judgment, each and all bore the title, “Rebecca Eady, Executrix vs. The City of Decatur, a Municipal Corporation.”
The certificate of the clerk of the Adams Circuit Court to his transcript certifies that such transcript “contains a full copy of the order book entries and the order of the Court in said-cause of Rebecca Eady, Administratrix vs. The City of Decatur, Indiana, as the same remains of record in my office,” etc.
The caption of the instructions and interrogatories tendered by the defendant each bore the following title: “Rebecca Eady, Ex. of the Estate of Philip J. Eady, deceased v. City of Decatur.”
The general verdict returned by the jury was as follows: “No. 12312 Rebecca Eady, Admx. Estate Phil. J. Eady. We, the jury find for the plaintiff and assess her damages in the sum of Forty Seven. Hundred and Fifty ($4750.00) Dollars. Chas. G. Griebel, Foreman.”
The motion for a new trial was entitled as follows: “Rebecca Eady, Executrix of the Estate of Philip Eady vs. City of Decatur.”
Counter-affidavits filed by plaintiff were entitled as follows: “Rebecca Eady, Executrix vs. The City of Decatur, a Municipal Corporation.”
The record entry showing the filing of the general bill of exceptions is entitled as follows: “Rebecca Eady, Exc., vs. City of Decatur.”
Such bill of exceptions bears the following title: “Rebecca Eady, Administratrix of the Estate of Philip Eady vs. City of Decatur.”
The judgment is as follows: “It is therefore considered, adjudged and decreed that the said plaintiff do have and recover of and from the defendant, The City of Decatur ‘A Municipal Corporation.’ ”
The praecipe for the transcript in this court is entitled as follows: “Rebecca Eady, as Ex. of est. of Philip Eady, dec’d., vs. City of Decatur.”
The motion for a new trial was overruled and judgment rendered September 7, 1912. The transcript was filed in this court August 13, 1913. This application to amend the assignment of error was filed April 25, 1914, and more than one year after the rendition of said judgment.
It is very earnestly contended by appellee that appellant’s application comes too late; that, under the decided cases, such motion or application will be denied when filed after the year for perfecting the appeal has expired.
The general rule adopted by the Supreme Court and this court is that insisted on by appellee, (Nordyke & Marmon Co. v. Fitzpatrick (1904), 162 Ind. 663, 665-666, 71 N. E. 46; Town of Windfall City v. State, ex rel. (1910), 174 Ind. 311, 313, 92 N. E. 57; Bender v. State ex rel. (1914), 176 Ind. 70, 95 N. E. 305; Pope v. Voight
This would be so because Rebecca Eady in her capacity as executrix of such will would be one person and Rebecca Eady, as administratrix of the estate of such decedent would be an entirely different person. Rebecca Eady, as administratrix of such estate would be entitled to bring an action of the character here brought, and a judgment in her favor in such capacity, no error of law intervening, would be authorized by §285 Burns 1908, Acts 1899 p. 405; but Rebecca Eady, executrix could have had no cause of action in the first instance under such statute.
.It is also true as- appellee, in effect, contends that the record rather than appellant’s application and affidavit should be looked to in determining whether the amendment asked should be permitted. As before suggested the state of the record is such as to render doubtful and uncertain whether the action was instituted in the name of the Rebecca Eady, executrix or Rebecca Eady, administratrix. The summons and the title of almost all the record entries indicate that the action was by Rebecca Eady, executrix, while the title of the complaint indicates an action by Rebecca Eady, administratrix. We find no record entry showing leave to amend the complaint at any time and nothing to show that any
As before suggested we know that an action of the character involved is authorized in favor of the administratrix and not in favor of the executrix, and we think this court is therefore warranted in assuming in favor of the judgment below that the action proceeded to judgment in the trial court in the name of Rebecca Eady, administratrix, rather than in the name of Rebecca Eady, executrix.
Appellant by its application herein admits that the judgment appealed from is, in fact, in favor of Rebecca Eady, administratrix and not Rebecca Eady, executrix, and it is to appellee’s interest to have the judgment so construed. To so construe it necessitates the inference that both parties to the action have inadvertently used, or permitted the use of, the word “executrix” instead of “administratrix”; that the error in the use of such word “executrix” throughout the proceedings has been of a clerical and informal nature and not as a change or substitution of different parties in interest. That such use of the word was of a clerical and informal nature is further evidenced by the qualifying words which follow it, viz., the words “of the estate” of such decedent instead of the words "of the will” of such decedent. It follows, we think, under such peculiar state of the record here presented, that fairness to both parties requires this court to treat the judgment appealed from as a judgment in favor of Rebecca Eady, administratrix of the estate of Philip J. Eady, deceased, and to treat the use of the word “executrix” throughout the entire proceeding both in the trial court and in this court, as an
In view of the state of the record here presented there can be no doubt but that the ends of justice will be best served by such a disposition of appellant’s application.
In the case of Johnson v. Common Council of Indianapolis (1861), 16 Ind. 227, it was held in effect that though the statute contained no provision for the corporate name of a city the presumption would maintain that it would retain its former name except that it would be the city of instead of the town of
In the case of Utica Township, etc. v. Miller (1878), 62 Ind. 230, it was held that an action against a township in its ordinary corporate name without the qualifying word “school” is an action against the civil township.
For the same reason and by analogy, an action against
For the reasons indicated appellant is permitted and authorized to amend his assignment of error in the respect herein indicated, any additional costs in this court occasioned thereby, including cost of printing any additional briefs by appellee to be taxed to and paid by appellant.